Despite Torture Uproar, DOJ Still Says No To Prosecutions

By Jennifer Bendery and Ali Watkins

WASHINGTON -- Readers don't have to go far into the Senate Intelligence Committee’s torture report before their stomachs start to turn. Detainees pushed to the edge of death, threatened with sexual assault, made to wear diapers and force-fed by way of a rectal tube -- and that’s just in the first few pages.

But despite the gruesome details, nobody at the CIA or in the military has been prosecuted for any wrongdoing related to the brutal interrogations. And it doesn't appear that's about to change.

It's up to the Justice Department to decide if legal charges should be brought. Beginning in 2009, John Durham, a special prosecutor appointed by Attorney General Eric Holder, looked into allegations of people being mistreated while in the custody of the U.S. government after the 9/11 attacks and ended up conducting two criminal investigations. But the Justice Department declined to prosecute in either case on the grounds that the admissible evidence wasn't sufficient "to obtain and sustain convictions beyond a reasonable doubt," according to a department spokesman.

That team of investigators has since reviewed the full Senate report, said the spokesman on Tuesday, but "did not find any new information" they hadn't previously considered in determining illegal activity.

The Justice Department review considered "all potentially applicable substantive criminal statutes as well as the statutes of limitations and jurisdictional provisions that govern prosecutions under those statutes," according to department documents. At the time, Durham also made clear that nobody would be prosecuted who had "acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."

"This inquiry was extraordinarily thorough and we stand by our previously announced decision not to initiate criminal charges," the Justice Department spokesman said.

During a call with reporters on Tuesday, top administration officials repeatedly deferred to the department when asked why nobody has been prosecuted for the post-9/11 torture, particularly in light of the damning Senate report. Similarly, White House press secretary Josh Earnest said any decisions about people being held "accountable" were up to the Justice Department.

Asked if those involved in carrying out so-called enhanced interrogation techniques are still working at the CIA, a senior administration official said, "We just don’t engage in those kinds of case-by-case personnel questions."

The official added, "At the time, they were authorized and they were reviewed as legal."

The Justice Department investigation overlapped with the Senate Intelligence Committee’s own inquiry, which also began in 2009. They generally saw the same sets of documents. But Senate investigators’ access was more constrained by the executive branch's power to claim privilege. The Justice investigators had certain legal authority that gave them full access to any and all information pertaining to the torture program.

Still, the Obama administration has essentially shielded CIA officers involved in the program with its “look forward, not backward” focus. While determined to examine the agency's past actions overall, the White House has been equally insistent that the CIA officers not be scapegoated for the legal tap dance the George W. Bush administration used to approve the program.

For their part, lawmakers on Capitol Hill are distancing themselves from the question of accountability, opting for a more abstract, reflective response to Tuesday’s release of the summary Senate report. When asked if any potential legal backlash had come up in conversations about the report, even those most dedicated to making it public hesitated to address the question.

“I think the strongest interest here is in making sure that this never happens again. And that is where most of us have held our focus,” said Sen. Martin Heinrich (D-N.M.) when asked if there had been discussion about reopening investigations.

Sen. Ron Wyden (D-Ore.), who has advocated fiercely for CIA accountability through releasing the report summary, also hesitated to comment on the prosecution question.

“Today is about getting the facts in front of the American people,” he said. “I haven’t heard any senator on any side talking about bills or anything else.”

“As we have both stated before, we are opposed to this study and believe it will present serious consequences for U.S. national security. Regardless of what one’s opinions may be on these issues, the study by Senate Democrats is an ideologically motivated and distorted recounting of historical events. The fact that the CIA’s Detention and Interrogation program developed significant intelligence that helped us identify and capture important al-Qa’ida terrorists, disrupt their ongoing plotting, and take down Usama Bin Ladin is incontrovertible. Claims included in this report that assert the contrary are simply wrong.”